The legal force of an electronic document is ensured through the use of electronic digital EDS signatures- a mechanism that allows you to prove that the author of the sent electronic document is in fact exactly who he claims to be, and that the document was not changed during the delivery process. EDS is used as an analogue of a handwritten signature or a regular seal in case of legal entity. The digital signature is added to the data block and allows the recipient of the block to check the source and integrity of the data and thus protect against forgery. Most enterprises recognize the advantages of electronic (paperless) workflow, which has the following advantages:

ease of making changes to the document;

the ability to place in the document not only text, but also multimedia data;

the ability to use pre-prepared forms;

more high speed transmission of information by a large number addresses;

saving paper;

higher compactness of archives;

easier control of information flows;

high speed of search and extraction of information;

the ability to protect documents from unauthorized access and differentiation of employees' access rights to information.

Figure 45 - EDS module

The functioning of the EDMS with EDS is provided by four components: the EDMS software and hardware complex, which includes the “EDS and encryption” module, the software and hardware systems of the time stamp service and the certification center, as well as several crypto providers.

According to the general opinion, a handwritten signature on a paper document solves the following tasks:

Convince the reader that the person who signed the document did it knowingly (signature authentic);

Prove that this person, and no one else, knowingly signed the document (the signature is genuine);

Being part of a document, protect it from fraudulent transfer to another document (signature cannot be reused);

Protect the document itself (the signed document cannot be changed);

Ensure the materiality of the signature and the document, ensuring that the person who signed the document cannot subsequently claim that the document was not signed by him (You can't refuse to sign.)

However, as practice shows, a handwritten signature on a paper document, by its very nature, leaves loopholes for fraudsters. Not without reason, in order to complicate their actions, special protective signs are applied to the forms of documents, the numbering and fastening of sheets are used, and in addition, along with the signature itself, they use the handwritten spelling of the surname, name, patronymic on the document, etc. In a word, for all its merits, handwritten The signature also has a number of disadvantages.

As a result of penetration computer technology in all areas human activity there was a need to implement an analogue of a person's handwritten signature in in electronic format. This task was successfully solved. The solution is based on developed in the mid-1970s. cryptographic algorithms with a public key, which are based on a complex mathematical apparatus.

At the same time, the EDS eliminated most of the problems inherent in a signature on a paper document, and provided the electronic document with the following the most important characteristics:

-integrity- the document cannot be changed after signing;

EDS is most widely used today in documentation support management (DOE), in payment systems, electronic commerce and accounting. Of these areas, the most demanded and complex is the task of automating the DOW of organizations - the main goal of creating electronic document management systems (EDMS). This is what we will focus on in this article. However, first it is necessary to clarify what is meant by the use of an EDS, keeping in mind its two main schemes:

Signing an electronic message when it is transmitted and verifying the signature of the sender upon receipt, i.e. secure document transmission. Often, such a scheme is perceived as a legally significant document flow, which is a deep delusion. Protecting an electronic message by means of an EDS is, of course, a useful and necessary thing, but it is completely insufficient to ensure a full-fledged document flow;

EDS use throughout the life cycle electronic document - when it is created, agreed, approved, familiarized with it, etc. Only in the case when the full life cycle document and the EDS is an integral part of it, we can talk about the use of a full-fledged, i.e. legally significant electronic document management systems.

Starting to work with the EDS, the user makes a request using the EDMS to obtain a key pair (a);

then requests a certificate for the newly generated public key (b);

if it is necessary to sign a document (just created or received from the EDMS), its data is transmitted

to a crypto provider to generate an EDS, after which a time stamp is placed on the EDS (c);

after receiving the document from the EDMS, the recipient sends it for verification to the cryptographic provider,

where not only the EDS itself is checked, but also the certificate and the time stamp (d)

Figure 46 - EDS in EDMS

V Lately more and more large organizations and enterprises are switching to digital document management. Of course, this is very convenient and allows you to save a significant amount of time. But this raises a serious question: what is the legal force?

From paper to electronic document management

In 2001, the Federal Law regulating the use of digital signature came into force. Since then, many organizations have changed the format of document management: from paper to digital or mixed. However, this law has a narrow focus: it focuses on the legal force of ES in documents and equates it to a handwritten one. At the same time, there is no general legislative act that would regulate ED in our country yet.

There are so many types of documents used in the workflow that it is very problematic to prescribe each of them in the law. Therefore, today digital document management is regulated indirectly, with the help of several different legislative acts. One of them is the Civil Code of the Russian Federation, in particular, Article 160. It provides for the possibility of signing documents not only with a handwritten signature, but also with any other, which is provided for by Russian law, including electronic digital.

The legal force of paper and electronic documents today is recognized as equal only in cases where all the necessary details are met.

Details that determine the legal force

Legal regulation of activities with electronic documents is provided for the following details.

name of the type of document (except for letters);
serial number;
name of company,
date of registration;
place of development and signing;
electronic digital signature (on paper - this is a regular signature).

They also give legal force to the document and on paper.

You can get a digital signature only at a certification center that is registered with the Ural Federal District. Such a signature is equivalent to a handwritten one and has the same legal effect.

Correspondence protection

By itself, a report, application or order in electronic form has no legal force, since there is no guarantee that the document will not be changed during processing. In addition, the confidentiality of transmitted information cannot be properly ensured. Therefore, whether electronic documents have legal force can be determined by a number of points:

the presence of an electronic digital signature, which was received in the manner prescribed by law;
the use of digital signatures only by certified means of telecommunications;
the existence of an agreement between the parties on the use of an electronic digital signature or a regulation that specifies the procedure for maintaining an ED and applying an electronic digital signature.

Only under these conditions can the legal force of electronic document management be guaranteed.

Special cases

It is no secret that a significant part of the correspondence between colleagues or clients is carried out by e-mail messaging. This may be quite enough to resolve important issues or clarify information. However, in some cases, it is required not only to send a letter by e-mail, but also to give it official status. The question arises whether, in this case, an e-mail is an official document.

Most large Russian enterprises and organizations will unequivocally interpret the letter as official. However, in order for such a letter to really have official status, it requires the presence of the above details on it. Naturally, the presence of a digital signature will give the necessary legal force to such a message.

In the absence of such, there may be some doubts about the authenticity. For example, the Civil Procedure Code makes a reservation that digital evidence is also taken as evidence in proceedings, but their verification for authenticity is required. And here there may be a problem with setting the identity of the sender. Therefore, a bilateral agreement with the organization with which the electronic correspondence is conducted would be a very desirable measure in this case.

In order to avoid litigation, it is recommended to keep a log of correspondence, faxes and emails. This is not necessary, but will serve as an additional guarantee of the passage of a particular message. In addition, some organizations use a mixed form of workflow, in which signed papers are stored in an archive, and their digitized version is used in the work. This approach will reliably protect your organization from various legal incidents.

It should also be taken into account that the legislation stipulates a limitation: an electronic digital signature is recognized as similar to a handwritten signature only if the legislation does not provide for the existence of a particular document in paper form. That is, when a digital signature cannot be replaced by a handwritten one.

What's next?

The prospect of digital workflow development is clear. The presence of a legislative act that would clearly regulate, would facilitate legal relations, and therefore, in the coming years, the active development of relevant international and Russian legislation will continue.

Technological progress brings new challenges that require changing traditional forms of work. Coming soon to electronic document turnover will go to most enterprises social sphere including education and healthcare. That is why the legally fixed norms of verification of digital documents will become the answer to this challenge.

And with electronic document management, do these documents have legal force? how to confirm the fact of shipment? thanks in advance!

How to organize paperwork in accounting. The legal force of electronic document management. What should be reflected in the accounting policy about electronic document management.

Question: And with electronic document management, do these documents have legal force? how to confirm the fact of shipment?

Answer: Yes, documents signed with an electronic signature (qualified, simple, unqualified) are recognized as equivalent to documents on paper, have the force of paper documents with a handwritten signature.

Such a statement follows from the provisions of paragraphs 1 and 2 of Art. 6 of the Law on electronic signature dated April 6, 2011 No. 63-FZ.

Rationale

How to organize paperwork in accounting

Electronic Documents

How to issue and certify an electronic primary document

Primary documents can be drawn up both on paper and in electronic form (part 5 of article 9 of the Law of December 6, 2011 No. 402-FZ). The latter option is possible if the documents are certified by an electronic signature ().

The format for submitting a document on the transfer of goods during trading operations in electronic form was approved by order of the Federal Tax Service of Russia dated November 30, 2015 No. ММВ-7-10/551. The format for submitting a document on the transfer of the results of work (a document on the provision of services) in electronic form was approved by order of the Federal Tax Service of Russia dated November 30, 2015 No. MMV-7-10 / 552. These formats are relevant in economic activity, and when submitting documents at the request of the inspection in electronic form.

And if the organization draws up documents not in the format approved by the Federal Tax Service of Russia? Then submit the forms to the inspectors on paper - certify the copies with a note that the documents are signed with an electronic signature.

Similar clarifications are given in the letter of the Federal Tax Service of Russia dated November 10, 2015 No. ED-4-15 / 19671.

For details on how to submit documents to tax inspectors, see:

How to submit documents at the request of inspectors during a desk tax audit;
How to submit documents at the request of inspectors during an on-site tax audit.

Electronic signature

There are the following types of electronic signature:

simple;
reinforced unskilled;
reinforced qualified.

What electronic signature to use for primary accounting documents is established by federal accounting standards (clause 4, part 3, article 21 of the Law of December 6, 2011 No. 402-FZ). But at present there is no such standard. Therefore, you can sign the primary with any electronic signature.

A document that is signed with a simple or enhanced unqualified signature has the effect of a paper document with a handwritten signature. But only if there is an agreement between counterparties to verify these signatures. Similar conclusions follow from paragraphs and article 6 of the Law of April 6, 2011 No. 63-FZ and are confirmed by letters of the Ministry of Finance of Russia of January 13, 2016 No. 03-03-06 / 1/259, of May 5, 2015 No. 07- 01-06 / 25701 , dated August 4, 2015 No. 03-03-06 / 44905 , Federal Tax Service of Russia dated May 19, 2016 No. SD-4-3 / 8904 .

It should be noted that earlier the Ministry of Finance of Russia took a different position: primary documents need to be certified only with an enhanced qualified signature. If you use a simple or enhanced unqualified signature, then documents cannot be accepted for accounting and tax accounting. Such clarifications were given by the Ministry of Finance of Russia in letters dated April 12, 2013 No. 03-03-07 / 12250, dated December 25, 2012 No. 03-03-06 / 2/139, dated May 28, 2012 No. 03-03- 06/2/67, July 7, 2011 No. 03-03-06/1/409.

Taking into account the fact that in later letters the Ministry of Finance of Russia softened its position, digital documents can be certified with any electronic signature. However, it is safer to use an enhanced qualified signature.

What should be reflected in the accounting policy about electronic document management

If the organization decided to draw up primary documents in electronic form, this method of maintaining documentation must be reflected in the accounting policy. In particular, in the accounting policy it is necessary to fix:
- a list of documents involved in electronic document management;
- a list of employees who have the right to sign electronic documents;
- a method of electronic document exchange (with or without the involvement of an electronic document management operator);
- the procedure for storing electronic documents;
- the method of submitting documents at the request of the tax inspectorate (in electronic form or on paper).

But the formats of electronic documents that the organization uses are not required to be reflected in the accounting policy. This was confirmed by the Federal Tax Service of Russia in a letter dated November 10, 2015 No. ED-4-15 / 19671. Although this letter we are talking about accounting policy for tax purposes, the conclusion of the Federal Tax Service of Russia is also relevant for accounting policy for accounting purposes.

Federal Law No. 63-FZ dated April 6, 2011 On Electronic Signature

Article 6

1. Information in electronic form, signed with a qualified electronic signature, is recognized as an electronic document equivalent to a paper document signed with a handwritten signature, and can be used in any legal relationship in accordance with the legislation of the Russian Federation, except if federal laws or adopted in accordance with their regulatory legal acts establish the requirement for the need to draw up a document exclusively on paper.

2. Information in electronic form, signed with a simple electronic signature or an unqualified electronic signature, is recognized as an electronic document equivalent to a paper document signed with a handwritten signature, in cases established by federal laws, regulatory legal acts adopted in accordance with them, or an agreement between participants in an electronic interactions. Regulatory legal acts and agreements between participants in electronic interaction establishing cases of recognition of electronic documents signed with an unqualified electronic signature as equivalent to paper documents signed with a handwritten signature should provide for the procedure for verifying an electronic signature. Regulatory legal acts and agreements between participants in electronic interaction establishing cases of recognition of electronic documents signed with a simple electronic signature as equivalent to paper documents signed with a handwritten signature must comply with the requirements of Article 9 of this Federal Law

The legal force of an electronic document is provided on the basis of the use of an electronic digital signature of the EDS - a mechanism that allows you to prove that the author of the sent electronic document is in fact exactly who he claims to be, and that the document was not changed during the delivery process. EDS is used as an analogue of a handwritten signature or a regular seal in the case of a legal entity. The digital signature is added to the data block and allows the recipient of the block to verify the source and data integrity and thus protect against counterfeiting.

Most enterprises recognize the advantages of electronic (paperless) workflow, which has the following advantages:

ease of making changes to the document;
the ability to place in the document not only text, but also multimedia data;
the ability to use pre-prepared forms;
higher speed of information transfer over a large number of addresses;
saving paper;
higher compactness of archives;
easier control of information flows;
high speed of search and extraction of information;
the ability to protect documents from unauthorized access and differentiation of employees' access rights to information.

Introduction allows you to reduce the number of services involved in working with documents (couriers, clerical workers, etc.).

Figure 4 shows how much the time of individual stages of working with documents is reduced when replacing a paper process with a digital one.

In conditions electronic document management much less costs are required for the restructuring of workflow when changing external conditions, for example, requirements to change the form of reporting.

electronic document management It is universally recognized that full transition to paperless technologies requires the resolution of a number of legal issues, as well as investments. So today in Russia you can find all types of workflow presented in Figure 4.

In conditions electronic document management much less costs are required for restructuring the workflow when external conditions change, for example, requirements for changing the reporting form.

Although the efficiency electronic document management It is universally recognized that full transition to paperless technologies requires the resolution of a number of legal issues, as well as investments. So today in Russia you can find all types of workflow, listed in Figure 4.

There are still enterprises and institutions that still work in the conditions of paperwork, the majority use computers and local networks and only a small percentage use fully automated systems management electronic documents. What is the reason for this situation?

Figure 6 - Advantages of electronic document management

Ideally, a consequence of the development electronic document management should become completely paperless technologies. Today, however, paper documents are still required to comply with many regulations - tax laws, accounting laws, etc. One of the main purposes of a document is the ability to certify certain facts. Until recently, a paper document with necessary details and degrees of protection was the main way of proving a particular fact, i.e. represented legal force. Paper as a material carrier has a drawback in the sense that it does not allow erasing and recording new information without a trace, but this disadvantage turns into a virtue in terms of eliminating document forgery. No wonder the Russian proverb says: what is written with a pen cannot be cut down with an ax.

In other words, when we receive a document that has a signature on every page, and there are no traces of violation of the surface of the paper (i.e., it is clear that the text was not erased or rewritten), we can be sure that this document was sent on behalf of who signed and that it has not changed during the delivery process.

Basically modern facilities encryption allows you to provide the same means of authenticating a document as a signature on paper.

The Federal Law "On Electronic Digital Signature" adopted in January 2002 gives organizations the opportunity to create systems for exchanging exclusively electronic documents, in which an electronic document can act as an original that does not need to be duplicated by a hard copy. However, today the law EDS absolute only for internal workflow, where it is actively used, since internal workflow is regulated by the CEO.

Thus, the main reason for the presence of a mixed workflow is the fact that the issue of applying EDS has not yet been resolved at the state level.

However, the exchange of documents in electronic form may not be used in all, but only in some areas of the organization's activities.

Electronic documents are gradually becoming an element of economic activity Russian companies. They are convenient, allow you not to litter the office with a bunch of paper, and companies can exchange such documents in a matter of seconds. But what is needed for an electronic document to have legal force? And how to prove the legal force of an electronic document in court?

Legal force of the electronic document

The current Russian legislation recognizes the possibility of processing a transaction using an electronic document, provided that such documents are signed with an electronic signature. The relevant rules are enshrined in Art. 434 Civil Code RF and in Part 4 of Art. eleven federal law dated July 27, 2006 No. 149-FZ “On information, information technology and on information protection” (hereinafter - Law No. 149-FZ).

In electronic form, not only contracts, but also primary and consolidated accounting documents can be drawn up - provided that they are certified by an electronic signature (Article 9 of the Federal Law of November 21, 1996 No. 129-FZ "On Accounting"). Article 169 of the Tax Code of the Russian Federation expressly allows the preparation and issuance of invoices in electronic form by mutual agreement of the parties to the transaction and if they have compatible technical means for acceptance and provided that the electronic invoice is signed by a qualified electronic signature of the head of the company or a person authorized by him1.

Thus, a key element of any electronic document, indicating its legal force and confirming the fact of sending by the appropriate party, is an electronic signature. Its presence is not last fact and during judicial trial, and therefore about legal regulation e-signature needs more details.

Electronic signature

In paragraph 1 of Art. 6 of the Federal Law of April 6, 2011 No. 63-FZ "On Electronic Signature" (hereinafter - Law No. 63-FZ) establishes that according to general rule information in electronic form signed with a qualified electronic signature is recognized as an electronic document equivalent to a paper document signed with a handwritten signature. A similar rule is established in paragraph 3 of Art. 11 of Law No. 149-FZ. This requirement is formulated as peremptory norm, however, the courts have the right to recognize the proper certification of information and a simple signature, which they often do in practice.

Here we come to the question of the types of electronic signatures legalized in modern Russian legislation. Article 5 of Law No. 63-FZ names the following types of electronic signature:

1. Simple electronic signature.

When it is applied, the fact of the formation of an electronic signature by a certain person is confirmed by using codes, passwords or other means.

2. Enhanced electronic signature.

She must:

1) be formed as a result of cryptographic transformation of information using an electronic signature key;

2) allow to identify the person who signed the electronic document;

3) allow to detect the fact of making changes to the electronic document after the moment of its signing;

4) be created using electronic signature means.

3. Enhanced qualified electronic signature.

Enhanced electronic signatures are divided into qualified and unqualified. The verification key of the enhanced qualified electronic signature must be specified in the qualified certificate.

Information in electronic form, signed with a simple electronic signature or an unqualified electronic signature, is recognized as an electronic document equivalent to a paper document signed with a handwritten signature. If, by law or custom business turnover the document must be certified with a seal, then an electronic document signed with an enhanced electronic signature is recognized as equivalent to a paper document signed with a handwritten signature and certified with a seal. This rule is established by parts 2 and 3 of Art. 6 of Law No. 63-FZ. In other words, simple and unqualified electronic signatures correspond to an autograph, and an enhanced signature corresponds to the certification of a document by a signature and a seal. Thus, an enhanced unqualified signature can be recognized as both an analogue of a signature and an analogue of a signature with a seal.

Electronic document in court

Documents sent via Email, in accordance with the above classification, can be called signed with a simple electronic signature. However, the court may recognize the exchange of such documents as the proper conclusion of an agreement if the circumstances of the case indicate the reality of the transaction: for example, the delivery of goods is carried out, which is confirmed by invoices, waybills and payment orders. In particular, such a legal position is confirmed by the decision of the Supreme Arbitration Court of the Russian Federation of October 17, 2008 No. 13675/08.

An electronic document is submitted to the court in a printed form with a certificate of the head or an authorized employee of the organization submitting this document to the court. This certificate must indicate that the printed hard copy corresponds to the electronic original. If the document is signed with a simple electronic signature, then at least the date and time of the formation of such an electronic document and the party that sent this document should be clear from the submitted printout. If the electronic document is signed with an enhanced signature, then the printout must contain a special mark on the electronic signature.

The court may recognize an agreement concluded via e-mail if each of the parties has submitted identical printouts of such an agreement. At the same time, such even identical paper copies, not confirmed by other evidence, cannot serve as a fact of confirmation of the conclusion of the contract. But what if the evidence is not collected, and the copies of the agreements submitted by the parties contain different conditions? It is for the prevention of such situations during the trial that it is necessary, even at the conclusion of the contract, to certify it with an enhanced qualified electronic signature.

Such a signature will make it possible to certify two fundamental points: firstly, that the contract was signed by the proper party (since the certificate is registered and issued with the position of the signatory), and secondly, that the document signed with an enhanced qualified electronic signature remained unchanged after signing.

In part 1 of Art. 4 of the Federal Law of January 10, 2002 No. 1-FZ "On Electronic Digital Signature", which is still in force, are established the following signs, with the simultaneous observance of which the electronic digital signature is considered equivalent to a handwritten one:

1. The signature key certificate is valid at the time of verification or at the time of signing the electronic document.

2. The authenticity of the electronic signature in the electronic document has been confirmed.